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Human Resource
and Management Services
April 2008
HUMAN RESOURCE EXCHANGE
Human resource issues and topics impacting employers
♦ FROM BLR COMPENSATION ♦
“The 10 "most overpaid" jobs” The jury found that the companies operated as an integrated
… In his article, "The 10 Most Overpaid U.S. Jobs and the enterprise and that their owner and manager sexually harassed
Little Effort They Require," Chris Pummer … notes the the teenager and other women he supervised. The jury
following jobs: apportioned $30,000 of the award for compensatory damages
to the teenage victim and an additional award to her of
1) Mutual fund managers $75,000 for punitive damages.
2) Washed-up pro athletes in long-term contracts
3) CEOs of poorly performing companies … The EEOC’s lawsuit (Civil Action No. H-06-3004 in U.S.
4) Orthodontists District Court for the Southern District of Texas, Houston
5) Motivational speakers and ex-politicians on the Division) charged the owner with egregious misconduct and
lecture circuit presented evidence at trial that the young female victim had
6) Real estate agents selling high-end homes been inappropriately touched by Nazir Ali, the company’s
7) Skycaps at major airports male owner, who besieged her with his offensive remarks,
8) West Coast longshoremen and kept her against her will during a long car ride while he
9) Major airline pilots graphically described his sexual appetites and intent to have
10) Wedding photographers sex with her against her will.
♦ FROM SHRM ♦ ♦ FROM HR MAGAZINE ♦
“Employee’s care of grandparents not always covered “Office mating”
under FMLA” According to a survey by Vault.com, an online career center,
Q: We have an employee seeking time off to care for a 47% surveyed had been involved in an office romance, and
grandparent who has a serious health condition. Does another 19% would consider it. Of those individuals who had
FMLA leave cover care-giving for a grandparent? a romance, 11% had dated their bosses or another superior.
A: The FMLA itself defines the term “parent” as the 20% of those who had an office romance admitted to having a
biological parent of an employee or an individual who physical tryst in the office.
stood “in loco parentis” to an employee when the
employee was a minor. ♦ FROM HR INSIGHT ♦
“Reward (and record) employees’ performance”
FMLA does not protect a leave of absence to provide … Written evaluations become critical evidence in most
care for grandparents unless the employee is able to employment discrimination cases. … In 2006, the U.S.
demonstrate that the grandparent stood in loco parentis. Supreme Court expanded the scope of retaliation claims. An
The regulations define in loco parentis as having had the individual “must show that a reasonable employee would
responsibility of providing day-to-day care to the have found the challenged action materially adverse, which in
employee as well as for financially supporting the this context means it well might have ‘dissuaded a reasonable
employee in his or her childhood. FMLA does not worker from making or supporting a charge of
require a legal or biological relationship to establish in discrimination.’”
loco parentis. As a result, unless the employee is able to
demonstrate that the grandparent stood in loco parentis, (Editor’s note – what this means is that a performance review,
the leave is not covered by FMLA. especially if it’s not a good evaluation, could be interpreted by an
employee that he/she was given a poor evaluation because of a
recent workers’ compensation absence, whistleblowing incident, or
♦ FROM EEOC WEBSITE ♦ because he/she filed a harassment claim, regardless as to whether it
“Jury awards $110,000 against dry cleaners for sexual turned out to be valid or not. This is another example of how, in the
harassment of a teenager” overall scheme of things, employment laws do not necessarily
… The EEOC had charged that the owner of Bellair Cleaners, change that often, but the interpretations of those laws certainly
Inc., doing business as Park Avenue Cleaners, Bellair change in their focus.)
Cleaners, and Your Valet (Park Avenue Cleaners), harassed a
female employee, then aged 19, and other women.
28723 IH-10W, Boerne, Texas 78006 Phone: 830/981-8723 Fax: 830/755-8731 email: hrm@hrm-sa.com
♦ FROM HR HERO ♦ ♦ FROM HR&M ♦
“Truth is stranger than fiction” “New FMLA poster”
In the truth is stranger than fiction category, a recently re- The FMLA was changed by Congress in late January 2008,
discovered case showed that a Hooter’s waitress in Florida and the DOL is currently working on updating the regulations
sued her employer for tricking her about a prize in a beer- to address the new provisions. The new poster will be revised
selling contest. The waitress thought she would win a and will be available in the near future once the new
Toyota if she sold the most beer. However, after she won regulations are issued. Until then, please go to
the contest, her manager blind-folded her; led her to the www.dol.gov/esa/whd/fmla/ndaaamndmnts.pdf for the
parking lot; and presented her with a plastic “toy Yoda” revised and free poster.
character from Star Wars. The manager claimed the prank
was an April Fool’s joke. Funny, right? Apparently, the FEATURED SERVICE
employee didn’t think so – she sued her employer, a EEOC Charges
Hooter’s franchisee, for breach of contract and fraudulent
misrepresentation. An organization receives a notice from EEOC that an
employee or ex-employee has filed a charge of discrimination
♦ A REAL LIFE SITUATION ♦ based on sex, race, or any other protected category.
Situation: A 29-year employee, age 66, had continuously
been a marginal performer. Through her 29 years, she had The organization gets in touch with its attorney and the
been under several supervisors, all of which mentioned attorney then decides to either mediate or file a written
performance deficiencies in her annual evaluations, however, response to the charge.
her overall ratings were always satisfactory.
Immediate thoughts: Why? Why does the organization feel
With the latest supervisor, he saw the same performance that the attorney is the only one that can respond to an EEOC
deficiencies and he saw the notations in her past evaluations charge? If the organization is big enough to have an HR
that identified those deficiencies, but he also wondered why professional on staff, why can’t the HR professional respond
she received overall satisfactory ratings. He also wondered to the charge?
why she had not been fired in the past.
HR&M has been involved in mediation and in filing written
As he was noting her performance and advising her that her responses to EEOC charges for 20 years. In those years,
performance was not acceptable, he told her that if she did not HR&M has helped HR professionals work on the responses so
improve to the level that was expected, that she would be that they can respond to any future claims. HR&M has also
jeopardizing her position. taken the full responsibility of responding to EEOC charges
when the organization did not have an HR professional on
Upon hearing this, she told her supervisor “Look, I’ve been staff.
here 29 years and you haven’t even been here 29 weeks. If
you think you’re going to fire me, go ahead and try it. We’ll Attorney involvement is not necessary. You can do it.
see who gets fired!” HR&M can help step you through it successfully.
Observation: Wow!!! Who’s in control here? And if the
supervisor takes and re-gains control, he may wind up losing ♦ REMEMBER! WE CAN HELP!! ♦
anyway. How? Why? Because the company has allowed her
poor performance, ergo, it is acceptable. Too much time has Consulting on performance, attendance, FMLA, Wage &
elapsed and too many supervisors have come and gone so that Hour, management accountability, and other unique issues is
if a good paper trail is in place, it will probably be looked at just one of the areas of our expertise.
as the paper trail was purposefully initiated to get her out of
the company because of her age. We also provide:
supervisory/management training, ranging from
Although this space is too small to list all of the various brown bag luncheon training to ½ or full day sessions
options available, the one that comes to mind is “You bought employee handbook development
her years ago. Live with it.” Simply put, the company has responses to discrimination charges and
indeed allowed this type of behavior and performance to unemployment claims
continue, and now, to do something about it at her age will on-line performance review forms and processes
definitely be a significant obstacle to overcome. The guidance and consultation on coaching, counseling,
company can still require certain expectations and can still and disciplining in employee relations matters
coach and counsel her. But to eventually get to the point of succession and strategic planning programs
firing her is going to be highly problematic. consultation on issues regarding attendance and
performance and guidance on terminations
Bottom line, the new supervisor is having to pay for the development of OFCCP compliant Affirmative
company’s failure to take action on an employee. This Action Plans
happens way too many times.
28723 IH-10W, Boerne, Texas 78006 Phone: 830/981-8723 Fax: 830/755-8731 email: hrm@hrm-sa.com
